9/19/2007

In VF appeal, these are the deciders: Telluride CO Daily Planet, 8/15/07

Who’s on state’s highest court, and how they rule

By Pat Healy

Sometime today, perhaps at this very moment, a bundle zips from a Denver law firm to the offices of the Colorado Supreme Court. It is a copious legal brief, studded with footnotes and precedents, that aims to keep the Valley Floor out of Telluride’s hands.

It is also the opening salvo in a constitutional battle between Telluride and the owners of the Valley Floor that will play out in the state’s highest court. There in Denver, seven justices will decide whether Telluride has the right to condemn the Valley Floor using eminent-domain powers.

After years of local debate, legal skirmishes and fevered fundraising, the fight for the $50 million expanse at Telluride’s front door will likely rest with these robed seven.

So who, exactly, are the judges who will decide the case? What do they think about eminent domain? Are they conservatives or liberals? Can a haruspex read Telluride’s future in the entrails of past decisions?

Well, you can try.

Five of the seven justices were appointed by a Democratic governor. Only two — justices Nathan B. Coats and Allison Eid — were appointed by a Republican, and they are likeliest to be in the minority, issuing dissenting opinions.

Most of the court’s opinions are unanimous, but it does cleave broadly along ideological lines, according to an analysis by Denver attorney Andrew Oh-Willeke.

He identified justices Mary Mullarkey, Gregory J. Hobbs, Alex J. Martinez and Michael L. Bender as the four that represent the court’s liberal majority. Justices Eid, Coats and Nancy E. Rice make up the conservative minority.

When the court splits, the liberal block tends to stick together and carry the day, Oh-Willeke found.

All of this seems to favor Telluride. As a legal issue, eminent domain isn’t necessarily as polarizing as, say, the death penalty, speech in schools, gay rights or medical marijuana.

But if the U.S. Supreme Court is any roadmap, when justices divide on eminent domain, conservatives tend to favor landowners and liberals tend to favor governments. That was the case in the high court’s infamous 2005 Kelo decision, when a 5-4 split court allowed a Connecticut town to condemn land for economic development.

But the Valley Floor case is about more than eminent domain. It’s about power, and the sources of power.

The court will examine whether a 2004 state law bars Telluride from condemning the Valley Floor. And it will examine whether that law is stronger than the state constitution that imbued those powers in the first place.

These arguments will focus on the so-called Telluride Amendment, which was tacked onto a broader eminent-domain law. The Telluride Amendment said home-rule municipalities (like Telluride) could not use eminent domain to take land outside their borders for open-space uses (like the Valley Floor).

This winter, after a jury trial set the Valley Floor’s price at $50 million, the town raised that money and deposited it with the court, which normally would have sealed the process. But SMVC appealed Telluride’s right to take the land, saying a district judge was wrong when he declared the Telluride Amendment unconstitutional and allowed the condemnation to proceed.

Since the justices won’t talk about upcoming cases, prior decisions are the best way to light the hallways of their thinking. But on this issue, there’s only a thin gruel of precedent, said land-use attorneys.

“There aren’t a lot of tea leaves to read,” said attorney Mark May. “There’s just not that much out there.”

In the past five years, the court has considered only a handful of eminent domain cases. And it’s hard to see patterns in their few, mostly unified rulings.

In 2004, the high court tossed out a Jefferson County condemnation case, saying that a quarry lake was no longer blighted and could not be taken.

A few months later, the court ruled that the Colorado Department of Transportation and Pitkin County had the authority to condemn private property for a parking structure.

May, who said he’d put his money on Telluride in the Valley Floor appeals, is looking forward to the court fight and the new law that will emerge from it.

“I think it’s going to be fascinating to see how the court decides this case,” he said.

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